WashCo Dems op-ed article

OP-ED: You Have The RIGHT To An Attorney…

by John Maelan

Few of us have ever been to law school, but most watch enough police shows to know– “You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you without charge.” Basic TV Law 101, right?

Nope, NOT in Washington County, my friends!

Apparently, our county, under its conservative District Attorney Kevin Barton, does things a little differently. You see, we fully fund the police and the sheriff, who arrest people. We also fully fund the District Attorney’s Office which prosecutes people. But for some odd reason, shucks, we just can’t seem to find the loose change to fully fund the Public Defender’s Office.

Weird, huh?

And yet, as graduates of any high school civics classes, we know that the US Constitution has a few things to say on the subject. Specifically, the Sixth Amendment guarantees the right “… to have the assistance of counsel for his defense.” This is no idle whim of some bleeding-heart, woke, liberal snowflake, but a hard fact of US law since the ink dried on the Bill of Rights back in 1791! And this fact, apparently, doesn’t care about DA Barton’s feelings.

You see, this failure of our county government to follow the law has gotten some attention from US District Court Judge Michael McShane recently. On the 15th of August, 2023, Judge McShane ordered Washington County to release every incarcerated person in the Washington County Jail who has been held without a lawyer for more than ten days (https://www.opb.org/article/2023/08/15/federal-judge-orders-release-from-jail-anyone-denied-attorney-washington-county-oregon/).

Naturally, our tough-on-crime District Attorney is aghast. While meeting with public defenders, judges and court staff just the week before, it was suggested that DA Barton stop charging misdemeanor crimes, such as petty vandalism, to help reduce the workload. And there is actually a legal process called “diversion” whereby low-level offenders can make a good faith restitution to avoid being formally charged.

Such diversion can, for example, save a juvenile form lugging a criminal record in their wake for the rest of their life for one stupid mistake. Or, a mentally ill person can get treatment in lieu of prosecution. Diversion can also be used to mandate an alcoholic get the help they need to become a better parent. You know, all that good stuff with pro-social outcomes. On the flip side, by not prosecuting willy-nilly, diversion frees up the DA, the courts, and the public defenders to focus on the serious cases where the evidence is strong and the offender actually needs to be incarcerated for the public good. But to this reasonable suggestion, our Mr. Barton responded with a “flat no.” (https://www.opb.org/article/2022/03/02/oregon-largest-public-defender-firm-stops-taking-cases-washington-county-crisis-deepens/ )

By backing off petty offences that could be handled through diversion “You’d have chaos,” Barton insisted. But the problem is, Mr. Barton, we already have chaos. Last January, the American Bar Association released a shocking study that found Oregon needs to add around 1,296 attorneys to fully meet its current public defense obligations. Naturally, that’s a rather large number and lawyers aren’t exactly canned goods waiting on the shelf to be available when needed. Even if the money can be found to pay that many qualified people, it will take time to hire, train, and find office space for them. With that in mind, it’s no wonder that there are dozens of citizens in the Washington County Jail with no constitutional representation whatsoever. But to this travesty, DA Barton simply replied, “To me that seems almost fantastical. It’s hard to believe that that’s grounded in reality.”

But is it really so hard to believe, Mr. Barton? After all, isn’t his DA’s office part of the problem?

Barton often crows that Washington County has the highest conviction rate in the state. Yippie for him. That means every case, no matter how fishy the evidence, is prosecuted to the hilt. And, of course, our DA knows that most defendants can’t afford the tens of thousands of dollars it costs to hire even a mediocre private attorney. Thus, Washington County citizens are forced to waive their rights, accept whatever lopsided plea-bargain Mr. Barton deigns to dole out, and then go to prison like good little poor people should—WHETHER THEY ARE INNOCENT OR NOT! Naturally, that only adds stress to our already overburdened state prison system, but that’s hardly DA Barton’s concern. It seems he simply believes that at the end of the day, the more Washington County citizens that go to prison, the better.

But we Democrats happen to disagree.

Fun fact, although claiming to be an independent, District Attorney Kevin Barton enjoys the full support of the Washington County Republican community as well as mega conservative donor Mr. Phil Knight. He has never, however, been endorsed by the Washington County Democratic Party—and if I were him, I certainly wouldn’t hold my breath on that score.

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